Administrative regulation

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An administrative regulation ( VwV , also VV ) in Germany is an arrangement within an administrative organization by a higher administrative instance or a supervisor to subordinate administrative authorities was made or servants and their effective range in principle to the internal law of the administration is to be limited. Administrative regulations are based on the hierarchical structure of the administration and regulate the details of the activities of subordinate administrative authorities from top to bottom . They are legal provisions and in principle - for lackExternal impact - no legal norms that directly affect the citizen . Since administrative regulations often also order norm-interpreting interpretations, they can, however, develop external effects in specific individual cases in the form of a specific administrative act or through the rejection of a requested administrative act.

Many laws allow the administration a discretion for their execution, and many laws contain indefinite legal terms that have to be interpreted and specified by the administration. The subject of many regulations is therefore the management of official discretion in a particular direction and / or the concretization of indeterminate legal concepts. The decision that the administration makes on a citizen's application is therefore often determined by the content of administrative regulations, in addition to the actual legal text. One example of this is the technical instructions for keeping the air clean (TA Luft for short).

General administrative regulation

The general administrative provisions serve to ensure uniform application of the law by the authorities and therefore only apply directly to the competent authorities, but not to the citizen who is also affected. Since the authority is obliged to apply the administrative regulations, these can also have legal significance for the citizens. The granting of a permit under the Federal Immission Control Act can depend on compliance with the TA Luft regulations.

Administrative regulations are not always referred to as such, but are also called technical instructions (TA), arrangement , service instructions , decrees , circulars , guidelines , administrative guidelines or orders . In addition to the TAs, the most important VwVen include the administrative regulation on road traffic regulations , the guidelines for criminal proceedings and fine proceedings (RiStBV), the penal enforcement order (StrVollstrO), the pre-trial detention order (UVollzO) and notifications in criminal and civil cases (MiStra, MiZi ).

Another well-known example of a general administrative regulation is the income tax guidelines . They bind the tax offices to a certain interpretation of the Income Tax Act and are, for example, often decisive in determining whether or not certain expenses that a taxpayer claims as income- related expenses are recognized as such or not.

The regulations can be divided into norminterpretierende and normkonkretisierende divide administrative provisions. The latter have a direct external effect, so, in contrast to administrative regulations that interpret norms and are only relevant for the employees of the respective administrative authority, they are also important for ordinary citizens . The Federal Administrative Court only accepts such norm- concretizing administrative regulations in the area of environmental and technology law for the concretization of indefinite legal terms such as “generally recognized technical standard” or “state of the art of science and technology” and also places further requirements on them. In addition to the aforementioned TA Luft, other technical instructions such as the TA Lärm are part of this type of administrative regulation.

In 2004, the Federal Administrative Court had to decide on an administrative regulation in social law that specifies claims (see below) . It decided that administrative regulations with direct external impact vis-à-vis third parties are to be made fully known to those affected and derived this from the rule of law and the guarantee of effective legal protection (Article 19 (4) of the Basic Law). The lack of publication renders this type of administrative regulation ineffective.

From a constitutional point of view, administrative regulations are often problematic because the rule of law and the principle of democracy require the democratically legitimized legislature to make the essential decisions themselves (in legal form). The administration only has a derived, so to speak “diluted” democratic legitimation and should therefore not be given too much decision-making power. On the other hand, a law cannot regulate all conceivable cases, so that the administration has to be given a certain leeway to regulate details for practical reasons. An example of such a field of law, in which administrative regulations play a problematic role, is the law on aliens . As early as May 2002, the Working Group of Information Commissioners in Germany (AGID) passed a resolution in which it called for the publication of administrative regulations for the purpose of transparency .

Implementation of EC directives

EC directives must be implemented in national law in such a way that any rights justified thereby are recognizable for the individual and can assert them. The ECJ denied that these requirements were met by implementing a directive in the TA-Luft, although this represents a VwV that specifies the norm . Rather, legal norms in the material sense are required .

See also


  • Becker, Joachim: Internes Verwaltungshandeln , in: Landes- und Kommunalverwaltung 1991, p. 100 f.
  • Annette Guckelberger : On the methodical handling of administrative regulations , in: Die Verwaltung 2002, p. 61 ff.
  • Hartmut Maurer : Comment on the decision of the Federal Administrative Court , Az. 5 CN 1.03 (see web link below), in: JZ 2005, pp. 895 to 897.

Web links